Ramesh Kumar v. Smt. Bimla Devi .

K.P.S Sandhu, J.:— Ramesh Kumar petitioner has filed this petition under section 482 Cr. P.C praying therein that the orders of the Sub-Divisional Judicial Magistrate. Ambala Cantt., Annexure P-1 and that of the Revisional Court Annexure P 2, be quashed. The facts which gave rise to this petitioner are as follows:—

2. The petition dated 30-7-1981 was filed by the respondent against the petitioner under Section 125 Cr. P.C for the grant of maintenance. The respondent stated in the petition that she was married to the petitioner in the month of June, 1979 and lived with him as his wife for about a year. During that period the petitioner and his family members maltreated her on the pretext that the respondent did not bring sufficient dowry and ultimately she was turned out of the house. The trial Magistrate allowed the petition and ordered the petitioner to pay Rs. 300/- P.M as maintenance to the respondent. The petitioner went in revision against the order of the trial Magistrate, but the same was dismissed by the learned Additional Sessions, Ambala vide order dated 21-1-1984. Hence this petition.

3. On 31-10-1934, the petitioner filed a petition under section 9 of the Hindu Marriage Act for the grant of decree of restitution of conjugal rights. The same was contested by the respondent. The Sub-Judge First Class, Rajpura after coming to clear findings that the respondent left the society of the petitioner without any reasonable excuse, passed the decree of restitution of conjugal rights in favour of the petitioner on 1.6.1983 The respondent went in appeal against the order of the Subordinate Judge, Rajpura. The same was dismissed by the High Court vide order dated 10-9-1984 (F.A.O No. 115 M of 1986). The respondent then filed a Letters Patent Appeal No 1131 of 1984 in the High Court against the order of the learned Single Judge.

4. The same was also dismissed by a Division Beach on January 11, 1985. The petitioner pleaded before the trial Magistrate that in view of the findings of the Civil Court, the petition filed by the respondent is liable to be dismissed. He placed on the record copy of the judgment of the Civil Court, Exhibit R.I The trial Magistrate rejected the plea of the petitioner in view of T. Sareetba v. T. Vekanta Subaiah A.I.R 1983 A.P 356 wherein section 9 of the Hindu Marriage Act has been held ultra vires of the Constitution of India. The learned Additional Sessions Judge. Ambala dismissed the revision petition filed by the petitioner on the short ground that there was a very limited scope for interference in revision and that there was no illegality or irregularity in the order of the learned trial Magistrate.

5. This petition deserves to be allowed on the short ground that the law laid down in T. Sareetha's case (Supra) is no more good law in view of the Supreme Court authority reported as Saroj Rani Smt v. Sudarshan Kumar Chadha (1984) 4 SCC 90 : A.I.R 1984 S.C 1562, wherein their Lordships were pleased to hold that section 9 of the Hindu Marriage Act is intra vires of the Constitution of India and the judgment in T. Sareetha's case (supra) was over ruled. Mr. S.K.S Bedi, learned counsel for the respondent has placed reliance on a Single Bench authority of this court reported as Sampuran Singh v. Gurdev Kaur Recent CR 490 1985 P.A.P 193 P&H where in it has been held that despite a decree of conjugal rights is passed in favour of the husband, wife was entitled to claim maintenance in the light of the events which bad Supervened while the claim for maintenance was pending. But I am afraid, the ratio of this authority does not apply to the facts of the case in hand. The facts in Sampuran Singh's case (supra) were entirely different. There it was proved that the husband was living with another woman in the house and had a son from her Nothing has been brought on the record in this case which could reflect adversely on the conduct of the petitioner. The findings of the Civil Court which have been upheld upto the High Court, still held good On the other hand, the respondent, inspite of the decree of the Civil Court has failed to perform conjugal duties. In this view of the matter, this petition is allowed and the orders Annexures P-1 and P-2 are set aside.